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Tuesday, October 15, 2024

Iowa Supreme Court mulling Summit pipeline lawsuit


Oct. 15, 2024 

 Iowa landowners and opponents to the Summit Carbon Solutions pipeline project rally outside the Iowa State Capitol in Des Moines on Oct. 8, during a state supreme court hearing. 
Photo courtesy of Bold Alliance

Oct. 15 (UPI) -- The Iowa Supreme Court is weighing a decision that could uphold a pipeline company's eminent domain right to survey property without landowner permission.

The state's high court held a hearing last week over the appeal of a district court decision. A landowner brought the appeal to the supreme court after the lower court ruled in favor of Summit Carbon Solutions in a lawsuit against him.

Kent Kasischke, a landowner in Hardin County, Iowa, was sued by Summit for refusing to allow surveyors onto his property to survey for its pipeline project. The Iowa Utilities Commission approved Summit's petition to build nearly 700 miles of CO2 pipeline across the state.

There are conditions Summit must meet before it can begin construction. Conditions include obtaining approval from other states that the pipeline will be built in, maintaining at least $100 million in liability insurance and offering to purchase voluntary easements from affected landowners under the same terms offered to landowners prior to the board's decision.

Summit must submit additional filings and prove it has met these conditions before the board will fully grant a permit. The board has ruled that the pipeline serves a public benefit, granting it eminent domain rights.

The pipeline project is planned to transport CO2 through Iowa, Nebraska, Minnesota and South Dakota to North Dakota where it will be stored at a sequestration site. It was originally slated to be completed in 2024 but has faced setbacks due to permitting issues and resistance from landowners.

Brian Jorde is the attorney representing Kasischke in his appeal to the Iowa Supreme Court. Jorde is representing more than 1,000 landowners against the pipeline, including landowners in South Dakota. He also represented South Dakota landowners in a case against the Navigator pipeline project. Navigator canceled that project last year after losing the case.

"It's not a public use," Jorde told UPI of Summit's proposed pipeline. "I don't know if the court wants to deal with that now. There will be at some point a determination whether transporting waste to never be put out to commercial use is in fact common carriage or not."

Jorde and Kasischke have three main arguments against Summit. First, they argue Summit is not a pipeline company as described by Iowa code. The code defines a pipeline company as one that transports a liquid, solid or gaseous substance except for water.

Summit plans to transport CO2 in a supercritical state.

Summit, represented by Des Moines-based attorney Ryan Koopmans, pushes back on the argument that it does not fit the description of a pipeline company due to it planning to transport CO2 in a supercritical state. Koopman writes in his briefing that this is a "hyper-technical interpretation" that ignores the intent of the legislature when it established the code.

"As the district court observed, it is 'clear that Summit's proposed pipeline is the exact type of hazardous liquid pipeline that the Iowa Legislature intended to be governed by Chapter 479B, regardless of the fact that the carbon dioxide being transported may not always meet a scientifically precise definition of 'liquefied' at every moment in the transportation process,'" the briefing reads.

Second, Kasischke argues he was not given proper notice by Summit that his land would be surveyed. Iowa code requires a pipeline company to give 10 days notice before entering a person's property.

Summit says it submitted evidence during the lower court trial in Hardin County that it sent three notice letters by restricted certified mail to Kasischke in 2022 and 2023, notifying him of its intention to access his property for surveys. The first letter was delivered and returned with Kasischke's signature. The next two were refused.

Kasischke's argument about being notified also claims that Summit's earliest attempts to notify him did not comply with Iowa code because they did not include the endorsement "Deliver to Addressee Only" on the envelope. Jorde writes that Summit admitted to not complying with this requirement initially and claiming at trial that it did not have to before changing course in subsequent mailings.

Summit responded in its briefing that it sent notices marked "Restricted Delivery" by certified mail, claiming this is a "functional equivalent."

Third, Jorde cites the U.S. Supreme Court decision in Cedar Point Nursery vs. Hassid. The court ruled that government regulations allowing access to private property can be considered as taking that property, requiring compensation to the property owner. Jorde says Iowa's code is too broad as it is and must be either narrowed or considered unconstitutional.

"In essence, if Summit will just say they will not use eminent domain ever and they're only going to work with people who want the project, that would be a thing a good company would do," Jorde said. "They know, because this project is so wildly unpopular, that without eminent domain they won't be able to build what they want."

Koopmans raises concern that ruling the Iowa code unconstitutional could have ramifications on survey access across the board. He notes that courts have recognized that entities with eminent domain rights have the right to enter private land to conduct surveys.

Tuesday's hearing was held at Iowa's historic supreme courtroom in the capitol building instead of its usual location at the Iowa Judicial Branch Building. This was due to the expectation that there would be a larger than usual crowd. An overflow room was also filled to capacity.

Emma Schmit, director of the Pipeline Fighters hub with Bold Alliance, attended the hearing. While she is confident in the arguments made by Jorde, she is hesitant to anticipate who Iowa's seven supreme court justices will rule.

"It wasn't as positive as we got from South Dakota but it also wasn't negative," Schmit told UPI. "They don't like to issue split decisions if they can avoid it."

A decision could come at any time, Schmit said. The court's term ends in June.

Kasischke is not the only landowner who has refused Summit's bid to survey their property, nor is he the only one Summit has filed a lawsuit against. Schmit is aware of at least seven more Iowa landowners who have been sued for refusing surveys. Some of those lawsuits were dropped before the Iowa Utilities Board hearings last fall.

"One of our speakers at the rally before the supreme court hearing shared his story of being sued," Schmit said. "It was an intimidation tactic. Kent is one of the first landowners to get a court date so his lawsuit wasn't dropped."

The pipeline project has drawn the interest of the legislature. Iowa House Speaker Pat Grassley said in a statement that the state utility board's approval of the project's route makes landowner rights a priority.

"This just further confirms what we already knew -- that the Legislature must conduct a comprehensive review and update the state's eminent domain laws," Grassley said. "We will seek feedback from Iowans on the best way forward and in the meantime, I stand ready to assist my constituents however I can."

Thirty-seven Republican legislators filed a lawsuit against the Iowa Utilities Commission last month in an attempt to stop the project. When the group, Republican Legislative Intervenors for Justice, filed a motion for the IUC to reconsider, it was critical of the board for being dismissive of the many public comments and testimonies it received.

In the board's final ruling, it notes that it conducted a hearing that spanned eight weeks, amassed a 7,500-page transcript and received about 4,200 comments. It also received 50,000 pages of prefiled testimony and exhibits. It refers to the large amount of testimony "unduly repetitious."

"Few developments could be more of an affront to democracy than a government agency -- this government agency -- dismissing the considered views of Iowans under its thumb as 'repetitious,'" the RLIJ wrote in its motion to the board. "The Board's complete dismissal of the 'repetitious' engagement by affected citizens is a tacit admission that the Board has pulled loose from its Constitutional moorings."

The Republican lawmakers also note that Summit Carbon Solutions has not made its shareholders known. This is something opponents of the pipeline have objected to since the project was announced.

"We've seen Democrats and Republicans on the same side of this issue which is not something you can say about most issues," Schmit said.

Thursday, August 08, 2024

Why is the “Pro-Family” GOP Blocking Legislation that Would Help Lift Many Kids Out of Poverty?


 
 August 8, 2024
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Republicans are using Vance’s kids and families rhetoric to convince voters to choose them in November, but they are failing when it comes to backing it up. In fact, they’re actively opposing important legislation to help children and parents.

On Thursday, Senate Republicans blocked a bill that would expand the Child Tax Credit — the very policy that Vance has championed and just accused Kamala Harris of opposing. Vance didn’t show up for the vote. Killing the proposal was a loss to roughly 16 million children in low-income working families, who would have benefited from about $700 in tax relief this year. Estimates from the Center on Budget and Policy Priorities show that the proposal would have lifted at least 500,000 children above the poverty line and raised the family incomes for at least 5 million more poor children.

The Child Tax Credit isn’t just the most effective policy tool for pulling children out of poverty — it’s also one of the most popular legislative proposals in the country right now. The current bill had bipartisan support when it passed the House in a 357-70 vote in January. Polling showed that 69% of Americans supported the proposal, including 80% of Democrats, 59% of Republicans and 63% of independents. The legislation even included tax cuts for some businesses’ research and development efforts as well as investments that Republicans have long sought.

Influential business groups made it clear that they wanted the bill to pass. But Republican leadership was able to keep it from getting to a vote, even with a majority of the Senate in favor, because 60 votes are needed to break the filibuster.

The big reason that Republicans killed the Child Tax Credit measure appears to have little to do with policy. Iowa Sen. Charles E. Grassley said the quiet part out loud in January when he noted that it might “make Biden look good.”

Republicans also fought the bigger, temporary expansion of the Child Tax Credit that passed in 2021. That legislation was historic, and poverty among children was reduced by 44% to its lowest level on record while it was in effect. But during the last three years, the party demonstrated that it’s still committed to an economic program that puts tax cuts for large corporations above the well-being of children and families.

At the same time, the GOP has blocked legislation to build a universal pre-K system, enact paid family and medical leave, expand subsidies for child care and improve home care for older people and people with disabilities.

Republicans want to have it both ways, touting their pro-family agenda while blocking pro-family legislation.

Democrats shouldn’t just mock Vance’s “childless cat lady” comments or rely on legal cases, even felony convictions, to make their case in the closing months of this election campaign. The party‘s candidates need to make it clear who is standing up for children and parents.

Increasingly, Republicans are framing the parenting issue as an existential question. Focusing on policy for children and families, they argue, demonstrates a commitment to the future.

This is a debate Democrats should welcome — and one they can handily win.

This op-ed originally appeared in the Los Angeles Times.

Justin Talbot Zorn is senior advisor for policy and strategy at CEPR. Mark Weisbrod is co-director of CEPR.

Monday, August 05, 2024

Opinion: Why is the 'pro-family' GOP blocking legislation that would help lift many kids out of poverty?

Justin Talbot Zorn and Mark Weisbrot
Sun, August 4, 2024 

Vice presidential candidate JD Vance is among the Republicans saying that Democrats are anti-family. (Julia Nikhinson / Associated Press)


Republican vice presidential nominee JD Vance told Megyn Kelly last month that Democrats are calling for an end to the Child Tax Credit because they are “anti-family and anti-kid.” Vance, who has courted controversy for calling Democrats the party of “childless cat ladies,” then declared, “We should send the signal to the culture that we are the pro-family party, and we’re gonna back it up with real policy. We’re the party of parents, we’re the party of kids.”

Republicans are using Vance's kids and families rhetoric to convince voters to choose them in November, but they are failing when it comes to backing it up. In fact, they’re actively opposing important legislation to help children and parents.

On Thursday, Senate Republicans blocked a bill that would expand the Child Tax Credit — the very policy that Vance has championed and just accused Kamala Harris of opposing. Vance didn’t show up for the vote. Killing the proposal was a loss to roughly 16 million children in low-income working families, who would have benefited from about $700 in tax relief this year. Estimates from the Center on Budget and Policy Priorities show that the proposal would have lifted at least 500,000 children above the poverty line and raised the family incomes for at least 5 million more poor children.


Read more: Calmes: Finally, a limit to Donald Trump's Teflon superpower — J.D. Vance

The Child Tax Credit isn’t just the most effective policy tool for pulling children out of poverty — it’s also one of the most popular legislative proposals in the country right now. The current bill had bipartisan support when it passed the House in a 357-70 vote in January. Polling showed that 69% of Americans supported the proposal, including 80% of Democrats, 59% of Republicans and 63% of independents. The legislation even included tax cuts for some businesses’ research and development efforts as well as investments that Republicans have long sought.

Influential business groups made it clear that they wanted the bill to pass. But Republican leadership was able to keep it from getting to a vote, even with a majority of the Senate in favor, because 60 votes are needed to break the filibuster.

The big reason that Republicans killed the Child Tax Credit measure appears to have little to do with policy. Iowa Sen. Charles E. Grassley said the quiet part out loud in January when he noted that it might “make Biden look good.”

Read more: Column: It's hard sharing a party with Trump or Vance. They taint the right's good ideas

Republicans also fought the bigger, temporary expansion of the Child Tax Credit that passed in 2021. That legislation was historic, and poverty among children was reduced by 44% to its lowest level on record while it was in effect. But during the last three years, the party demonstrated that it’s still committed to an economic program that puts tax cuts for large corporations above the well-being of children and families.

At the same time, the GOP has blocked legislation to build a universal pre-K system, enact paid family and medical leave, expand subsidies for child care and improve home care for older people and people with disabilities.

Republicans want to have it both ways, touting their pro-family agenda while blocking pro-family legislation.

Democrats shouldn’t just mock Vance’s “childless cat lady” comments or rely on legal cases, even felony convictions, to make their case in the closing months of this election campaign. The party's candidates need to make it clear who is standing up for children and parents.

Increasingly, Republicans are framing the parenting issue as an existential question. Focusing on policy for children and families, they argue, demonstrates a commitment to the future.

This is a debate Democrats should welcome — and one they can handily win.

Justin Talbot Zorn is a senior advisor at the Center for Economic and Policy Research. Mark Weisbrot is co-director.

This story originally appeared in Los Angeles Times.

Tuesday, July 16, 2024

OpenAI whistleblowers ask SEC to investigate the company’s non-disclosure agreements with employees


 An OpenAI logo is shown on May 29, 2024, in Los Angeles. OpenAI whistleblowers have filed a complaint with the Securities and Exchange Commission and asked the agency to investigate whether the company illegally restricted workers from speaking out about the risks of its artificial intelligence technology.(AP Photo/Marcio Jose Sanchez, File)


 July 15, 2024

NEW YORK (AP) — OpenAI whistleblowers have filed a complaint with the Securities and Exchange Commission and asked the agency to investigate whether the ChatGPT maker illegally restricted workers from speaking out about the risks of its artificial intelligence technology.

A letter to SEC Chair Gary Gensler representing “one or more anonymous and confidential” whistleblowers asks the agency to swiftly and aggressively enforce its rules against non-disclosure agreements that discourage employees or investors from raising concerns with regulators.

The July 1 letter references a formal whistleblower complaint recently filed with the SEC. The Washington Post was the first to report on the letter.

U.S. Sen. Chuck Grassley’s office shared a copy of the letter with The Associated Press, noting it was provided to his office by legally protected whistleblowers.

“OpenAI’s policies and practices appear to cast a chilling effect on whistleblowers’ right to speak up and receive due compensation for their protected disclosures,” said Grassley, an Iowa Republican, in a written statement. “In order for the federal government to stay one step ahead of artificial intelligence, OpenAI’s nondisclosure agreements must change.”


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OpenAI said in a statement that its policies protect employees’ rights to make protected disclosures. The company also noted that it’s already made changes to remove “nondisparagement terms” that could punish departing employees if they criticize the company after they leave.

SEC didn’t respond to a request for comment Monday and doesn’t typically comment on whether or not it is opening an investigation.

Sunday, June 16, 2024

Warren’s New Bill Makes Private Equity’s Death Grip on Hospitals a Crime


 

JUNE 14, 2024
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Private equity’s entrance into health care since 2000 has been dramatic. Both the number of private equity (PE) deals and annual PE investments in health care increased tenfold between 2001 and 2020, and peaked in 2021.

Until now, lax corporate transparency and accountability regulations meant that there was nothing anyone could do when corporate owners of health care companies enriched themselves and their investors while driving the companies they owned to financial disaster. They got away with their ill-gotten gains while the hospitals’ stakeholders and communities paid the price. But that is about to change.

Senator Elizabeth Warren (D-MA) announced the Corporate Crimes Against Health Care Bill. This new legislation will empower state Attorneys General and the US Attorney General to claw back funds and impose civil and, in the case where a patient dies, criminal penalties on a PE firm and related financial actors whose financial engineering activities drove the health care organization to financial ruin.

Senator Warren’s Corporate Crimes Against Health Care bill will curb the use of financial engineering strategies that endanger the integrity of the US health system. It will curb abuses that I and other researchersinvestigating the financialization of America’s health system have identified. It will protect the right of patients to the best care possible, of professionals and frontline workers to adequate staffing and time with patients, and of communities to accessible health care.

In the case where looting the hospital results in a patient’s death, the Corporate Crimes Against Health Care bill mandates that executives of the PE firm and the failing health care company will be subject to a new criminal penalty of up to six years in prison.

Regulators — state attorneys general and the US attorney general — will be able to claw back all compensation paid to PE firms and health company executives who unjustly enriched themselves as the health care organization spiraled toward serious, avoidable financial difficulties. A corporate owner who shows that it could not have prevented the financial troubles will not be penalized.

Importantly, and proactively, the legislation would prohibit federal health programs from making payments to hospitals and other health organizations that sell assets to a real estate investment trust (REIT).

It provides transparency by requiring health care entities receiving federal funding to report changes in ownership and control as well as financial data including debt. Health care professionals caught between the demands of their corporate owners and the needs of their patients experience this conflict in deeply personal and disabling ways that have been termed “moral injury.”

The new legislation will mandate a Health and Human Services Office of the Inspector General report to Congress on the harms of corporatization in health care.

Today, private equity has ownership stakes in nearly every segment of health care from doctors’ practices and hospice agencies to hospitals, health IT, and medical debt collection. The supercharged drive for profits by PE owners clashes with the public’s right to an equitable and inclusive health system that puts patients’ needs first. PE firms prey on the most vulnerable members of society: children with behavioral problems, the frail and poor elderly, the dying being cared for by hospice agencies, and acutely ill patients in hospitals.

Private equity has a well-worn playbook that it uses to legally loot health care companies. These strategies erode the financial stability of organizations across the health care spectrum. But the effects of PE’s relentless pursuit of maximal profit in the four to seven-year window before it resells the company may be most pernicious in hospitals. The scale of hospitals and affiliated health systems in terms of the number of patients cared for, professional and frontline workers employed, and the communities they serve, dwarfs other health segments. A hospital closure can devastate the community it serves.

Private Equity uses standard operating procedures, like these, to extract wealth from the companies it owns:

+ Recruit investors who commit capital to a private equity fund. For instance, investors like pension funds, insurance companies, sovereign wealth funds, and high net worth individuals provide the funds, but they don’t make any decisions.

+ Buy health care companies and providers for the PE fund’s portfolio of assets, transforming an organization whose mission is to serve the public good into a financial asset to be bought and sold.

+ Use the capital the investors have contributed to the PE fund to make the “down payment” on the acquisition of the health organization. The PE firm contributes 2 cents to the PE fund for every dollar the investors put in, so it has very little of its own money at risk.

+ Use lots of debt (leverage) to acquire the health organization and then obligate the acquired enterprise to repay the borrowed funds. Even though the debt was used by the PE fund to buy the company, which it now owns, it is the company, and not the fund, that is on the hook to repay the debt. This is a so-called leveraged buyout.

+ The higher the use of debt, the greater the profit for the PE firm and its investors when the company is sold a few years later. But debt is a two-edged sword. It weakens the health organization, greatly increasing the risk it will face financial distress and bankruptcy.

+ Require the health company to take on more debt and use the proceeds to pay dividends to the organization’s owners, i.e., the PE firm and its investors.

+ Strip the health organization of its assets by selling off its real estate to a real estate investment trust (REIT) in a sale-leaseback agreement. The proceeds of the sale are used to line the pockets of the PE firms and their investors. The health care organization is left with the lease and must now pay rent on property it formerly owned.

+ Require the health organization, which the PE fund now owns, to agree to pay you for vaguely specified “monitoring” services, colloquially referred to as “money for nothing.”

+ Engage in cost cutting and tax manipulation to increase cash flow, known as “putting lipstick on the pig.”

+ Sell the dolled-up, debt-ridden company at a profit in four to seven years after acquiring it. Give the PE firm 20 percent of the profit even though it only put up 2 percent of the equity.

+ Walk away scot-free if the health company sinks under the weight of its fees, debts, and rent payments. Keep all the money you skimmed off the top to line the pockets of your executives. Leave the patients, workers, creditors, and community to pay the price.

In hospitals and nursing homes, the financial strategies employed by private equity siphon off taxpayer dollars that fund Medicare and Medicaid and are meant to pay for health care for patients. The public’s money is used to unjustly enrich PE firms and their investors. Mortality is higher in PE-owned nursing homes. Hospital patients are left with poor care and a higher incidence of “adverse events” in hospitals — ulcerated bed sores, falls, nasty hospital-acquired illnesses — that complicate their recovery.

We have seen this most recently in the dramatic implosion of the Steward Health System, now bankrupt and stranding patients, workers, vendors, and creditors. Many communities are left without a way to meet the health needs of their residents when private equity deals close a safety net hospital or the only hospital in an area.

PE firm Cerberus Capital bought out a small troubled Catholic hospital system in the Boston area, Caritas Christi Health Care, in 2010. After a few years, Cerberus sold off most of its hospitals’ property to MPT, a real estate investment trust. This left the hospitals saddled with long-term inflated leases.

Cerberus used the sale proceeds to pay itself hundreds of millions in dividends and then used the Steward system as a platform for a massive debt-driven acquisition strategy to buy out 27 hospitals in nine states in three years between 2016 and 2019, then roll them up into a dominant health care company in its local markets.

Steward’s debt load exploded, and by 2019, its financials were deeply in the red. Its Massachusetts hospitals were the worst financial performers of any system in the state and had higher than average rates of patient falls, hospital-acquired infections, and patient readmissions. Unable to find a buyer for its financially weakened hospitals, Cerberus exited Steward in 2020 by lending a group of the hospital system’s physicians the money to buy the troubled chain, leaving them to cope with above-market rent payments and massive debt. Cerberus pocketed $782 million for itself and its investors from its ownership of Steward.

Steward declared bankruptcy this year and will shutter most of its hospitals. Its nine Massachusetts hospitals, four of them safety net hospitals, served 200,000 patients a year. Closing them will leave patients without access to emergency and other vital medical services, and with long travel times for surgeries, cancer care, and care for chronic conditions.

The most tragic story to emerge from Steward’s financial fiasco is the death of a new mother just a day after giving birth at a Steward hospital. The woman had a deep bleed that could have been treated with an embolism coil. But the hospital did not have one. Weeks earlier the devices had been repossessed by their manufacturer because the hospital failed to pay for them.

Steward is not an isolated case. In 2010, PE firm Leonard Green acquired five community health systems, renamed them Prospect Medical Holdings, and expanded the system through debt-financed mergers and acquisitions to 20 hospitals and 165 clinics by 2019. The hospital system’s debt level multiplied and its quality ratings fell to among the lowest in the country. It sold off much of its hospitals’ real estate to MPT so that its hospitals now pay inflated rents.

In the Fall of 2019, Leonard Green shut down its hospital in San Antonio, Texas as well as the hospital’s home health division, its specialty health and behavioral center, and other facilities, laying off nearly a thousand workers. By that time, it had extracted at least $658 million in fees and dividend recapitalizations. Taxpayers pay: 55 percent of Prospect’s annual net revenue through Medicare and Medicaid.

In the Fall of 2023, Leonard Green closed Delaware Memorial Hospital, a debt-ridden safety net hospital in a middle-class suburb of Philadelphia, and was given a nine-month grace period to find a buyer for Crozer Health, a failing four-hospital chain in Pennsylvania’s Chester County.

Apollo Global Management is currently the largest private equity owner of hospitals. It owns LifePoint Health and Scion Health, which, between them, have a total of 244 hospitals. This is more than half of the 457 acute care, behavioral, and specialty hospitals the Private Equity Stakeholder Project has identified as private equity owned.

LifePoint is the largest chain of mostly rural hospitals in the US. It owns 62 acute care hospitals serving communities in 16 states. In early 2020, Lifepoint sold the real estate of 10 of its hospitals in six states to Medical Properties Trust in a sale-leaseback deal that enriches Apollo and leaves the hospitals with long-term leases and escalating rent payments.

On March 17, Senator Charles Grassley (R-Iowa) sent a letter to LifePoint inquiring about this and other “opaque and questionable acquisitions, mergers, and other related party transactions…” Concerned about the financial condition of the LifePoint hospitals and dissatisfied with the responses he got from its PE owner, he is investigating further. Along with other health care companies owned by PE firms, LifePoint is the subject of two US Senate inquiries — one of them co-led by Senator Grassley.

In the last fifteen years, the private equity industry’s growth has rested on a foundation of sand, supported by secrecy, misinformation, hype, and poor institutional governance. The private equity industry, controlling trillions of dollars in assets, sorely needs adult supervision, independent verification, and public information dissemination.

Not only does the Corporate Crimes Against Health Care bill curb the use of financial engineering strategies that endanger the integrity of the US health system; it offers justice for those harmed.

This first appeared on CEPR.